the affordable care act and clinical integration: a primer mike segal, esq. broad and cassel...

THE AFFORDABLECARE ACT AND

CLINICAL INTEGRATION:

A PRIMER

Mike Segal, Esq.Broad and Cassel

PresentedJune 13, 2013

Broad and Cassel Copyright 2013

19th Annual Meeting of the

Florida Society of

Gynelogical Oncologists

(FSGO)

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“IT’LL SOON SHAKE YOUR WINDOWS

AND RATTLE YOUR WALLS

FOR THE TIMES THEY ARE A-CHANGIN’”

- BOB DYLAN


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Affordable Care Act(ACA)

Signed into law in March 2010 Controversial; for sure, but Constitutional No Longer An

Issue; Today – IT’S THE LAW! Bipartisan Support for providing better quality of care at

a lower cost – the “Quality/Cost Initiative”.


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ACA Goals

Consolidate physicians and hospitals into provider teams, using state-of-the-art technology, coordination of care and evidence based medicine, with protocols

Accentuate use of Primary Care Physicians Encourage Wellness Focus on disease prevention and tracking diseases Medical Homes


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ACA Goals

How does the government intend to achieve this Quality/Cost Initiative through ACA?

Phase out fee-for-service medicine Promote the use of state of the art intellectual technology

with usable data Pay providers who provide outstanding performance and

outcomes, and penalize those who don’t Insure millions of people currently not on the rolls

through health care exchanges, beginning 1/1/2014


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Fee-For-ServiceFailings

According to a Massachusetts 2009 Special Commission Report, fee for service:

Rewards overutilization Fails to recognize differences in provider quality or

performance Encourages the use of high-margin services rather

than low-cost alternatives Fails to compensate for care coordination Bases payment on market leverage rather than

health care value Fails to align provider incentives


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Major ACA Provisions Focusing on Quality/CostInitiative

Creation of Accountable Care Organizations (ACOs) – Began 1/1/12

Center for Medicare and Medicaid Innovation (CMI) – Initially funded with $10 billion

Medical Homes – Independent at Home Medical Practice Program - was to begin 1/1/12, but has not

Bundled Payments – National, voluntary pilot program that began 1/1/13

Hospital Value-Based Purchasing – Effective 10/1/12


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Accountable Care Organization – Definition

What is an ACO? According to Elliot Fisher, who is generally credited with inventing the concept:

ACOs consist of providers who are jointly held accountable for achieving measured quality improvements and reductions in the rate of spending growth. Our definition emphasizes that these cost and quality improvements must achieve overall, per capita improvements in quality and cost, and that ACOs should have at least limited accountability for achieving these improvements while caring for a defined population of patients.


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What are the GOALS of a Medicare ACO?

Better Care for Individuals Better Health for Populations Lower Growth in Expenditure

BETTER QUALITY OF CARE AT A LOWER COST!


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Mechanics of Shared Savings (MSSP)

Image Courtesy of the Advisory Board Company

Applying Total Cost Accountability to Fee-for-Service Payments


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Crux of MSSP Sharing Opportunity

Applies to Medicare Part A and B only Measured on total Part A and B costs of assigned beneficiaries Basic reimbursement for services rendered by providers to

beneficiaries unchanged CMS will share with ACO (shared savings) reductions in total,

aggregate cost of beneficiary care, provided that, if health quality initiatives not obtained, the shared savings will be reduced (and could even be eliminated)


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THERE ARE RISKS

Cost of perations can be more than $1 million per year, with no assurance of any shared savings

Where does the investment come from? Shared Savings, even if earned, not likely to be received until will

into the second contract year, and must first be used to pay back investors

Consequences of lower costs may mean fewer treatments, less testing, fewer admissions, et al

April 23, 2012, Modern Healthcare article, “No ROI in ACO,” indicates for-profit hospital companies not rushing to participate

Beneficiaries cannot be forced t use ACP participants In an ACO demonstration project that ran from 2005 – 2010, with 10

sophisticated integrated delivery systems and medical practices, only about half showed any real return on investment


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Who Can Participate?

Minimum Population Size: 5,000 Beneficiaries (but in actuality more is necessary)

Potential ACO Entities: medical groups, independent practice associations, partnerships or joint ventures between hospitals and medical groups, integrated delivery systems with employed physicians, federally qualified centers, rural health centers and some critical access hospitals

Physicians and other Medicare enrolled providers and suppliers (e.g., SNF nursing home, LTC hospital) may participate with the above entities in an ACO

All entities must have strong PCP presence ACO must be a legal entity with its own tax identification number,

governance and management


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Some Requirements

Physicians must account for 75% of governing body (no matter how much they own)

At least one Medicare beneficiary must be on the governing board – unless the ACO demonstrates an alternative means of ensuring meaningful participation in governance by Medicare beneficiaries

ACO contracts are for three years (or more, in case of those starting in 2012)

Two Tracks: Track One is shared savings only, while Track Two provides the ability to share more savings, but also with risk of loss

An ACO professional includes a physician, PA, NP or CN ACO must have an Executive Director, a compliance officer and a

medical director (does not have to be full-time) Must have an infrastructure designed to receive and distribute shared

savingsBroad and Cassel Copyright 2013

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Some Additional Requirements

Must have a repayment mechanism in place if Track Two (or, in case of more than 36 month contract, requesting an interim payment)

All participants (whether or not owners) must sign a participation agreement

ACO must sign data use agreement to receive data from CMS Must have QU/QA plan Must have plan to promote evidence-based medicine Must promote beneficiary engagement Must coordinate care Must have a procedure for terminating non-performing parties Must be subject to substantial monitoring and reporting

requirements, including reporting of quality data


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TINs: All or None Rule

Patients are assigned to a Medicare ACO through its PCPs (and, in certain cases, specialists) based upon plurality of care

PCPs are, by tax identification number (TIN), exclusive to one Medicare ACO Specialists (except specialist treated as PCP) can be in more than one

Medicare ACO, but if specialist is in a group with PCPs that is difficult to accomplish – (check out following site for Broad and Cassel article on subject: http://www.broadandcassel.com/articles/DecipheringACOExclusivity.pdf)

A Medicare ACO Participant includes an entity (or an individual if a solo physician) has a TIN and which has one or more Medicare billers (ACO providers/suppliers) who have reassigned their billings to the Medicare ACO Participant TIN

Medicare ACO application requires each ACO Participant in the Medicare ACO, and all of its providers/suppliers, to agree in writing to comply with all MSSP regulations


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Patient Attribution

Beneficiaries Assigned on a Retrospective Basis:

Image Courtesy of the Advisory Board CompanyBroad and Cassel Copyright 2013

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Patient Choice and Notice

Patients may freely choose providers without regarding to provider’s participation in an ACO

Providers participating in the ACO must inform patients that the provider is participating and that patient has freedom of choice

Notices of ACO participation must be posted Patients must be provided option to protect privacy of personal

information EHR and internal data remains key, but not absolutely required for

now ACO must notify patients of its intent to request identifiable data from

CMS and the patients’ right to refuse to allow CMS to share such information


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Expenditure Target

Base expenditure target, against which shared savings is measured, will be computed by CMS based on 3 years weighted average of expenditures for assigned beneficiaries

Weighting is 60% most recent year, 30% for the year before and 10% for the year before that

The expenditure target is trended forward each year based upon a national, not local, increase


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Prospective Date EnableACOs to Focus Effort


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Shared Savings


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Shared Savings

ACOs receive shared savings payments if spending per attributed beneficiary grows slower than national per beneficiary spending.

1 Minimum Savings Rate


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Quality and Reporting

33 quality measures in 4 domains: Patient/Caregiver Experience Care Coordination/Patient Safety Preventive Health At-Risk Populations

EHR Quality Measure is double weighted


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Meaningful Use No Longer a Prerequisite


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Bonus payout to ACO is adjusted based on quality performance Payouts are based on the percentage of “quality points” that the ACO earns ACOs earn quality points for simply reporting in the first year of

participation, but by the third year will receive quality points based on actual performance

Measured against other ACOs Even if savings achieved, entitlement to share is based on quality 70% quality standards overall in each domain necessary to avoid being

placed on a corrective action plan

Significant transparency requirements around ACO operations and financing ACOs will be required to provide administrative information about the ACO

to CMS and the public on both the quality and the financial performance of its operations


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Changes to the AntitrustPolicy Statement


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Legal Considerations

Image Courtesy of the Advisory Board Company

New Waivers for Fraud & Abuse Restrictions


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ACOs (Not Medicare):Clinical Integration Required

1996 - FTC and DOJ issues joint guidelines regarding antitrust issues for health care combinations

Guidelines require, in network where not all physicians are members of same medical group, that physician members be “clinically integrated” in order to share financial information and jointly negotiate fee for service contracts

There have been four published FTC opinions since 2002 holding that Clinical Integration (CI) in network was achieved (see, e.g., www.tristatehealth.com)


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Clinical Integration – Why is it important? What is it?

The Advisory Board Company defines Clinical Integration as “a strategy in which physicians – often in partnership with a hospital or health system – make a significant collective commitment to performance improvement and investment in infrastructure to facilitate these quality and efficiency gains”

CI designed to bring together different specialties under common governance and incentive structures to create – and reward – collaboration between groups of physicians who may not currently work together

CI is an imperative for a successful ACO (Medicare or otherwise)


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Three part FTC/DOJ standard

Participants must demonstrate significant commitment (both in time and money) to cost control and quality improvement, with realistic opportunity to achieve goals

Joint fee for service contracting with payers, must be reasonably necessary to support network’s infrastructure and support greater collaboration (in other words, network may negotiate higher prices, but only if this is directly connected with offering a more effective CI product)

Network cannot have too much market power


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Clinical IntegrationKey Elements

1. ACCOUNTABILITY

2. COLLABORATION

3. PATIENT CENTERED MEDICAL HOMES

4. QUALITY MEASURES

5. EVIDENCE BASED MEDICINE

6. TRANSPARENCY

7. HEALTH INFORMATION TECHNOLOGY

8. CULTURE OF ACOUNTABILITY


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Accountability

“To be accountable is to understand that care will be measured and reported and that quality must improve, all while costs are controlled, or at least monitored.”

- Alice Gosfield Accountable for Performance and Outcomes Accountable for Costs Accountable for Patient Satisfaction No more Fee for Service Aligning Incentives


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Collaboration

Team approach Use of case managers Strategic oversight for plan of care Cross communication among professionals, and with health plans Careful documentation – in electronic form Strong patient communications


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Patient Centered Medical Homes (PCMH)

PCMH is, according to NCQA, “a model of care in which patients have a direct relationship with a provider who coordinates a cooperative team of healthcare professionals, takes collective responsibility for the care provided to the patient, and arranges for appropriate care with other qualified providers as needed.”

Patient centric Primary care based Heavy dose of nurses, P.A.’s and other paraprofessionals Provides coordinated care Foundation of ACOs Quality time between patient, physician and care team Coordinated care Managed care plans are implementing PCHM Certification


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Quality Measures

Still a work in progress Meant to measure outcomes 33 quality measures with Medicare ACOs, divided into 4 parts:

Patient/Caregiver experience Care coordination/patient safety Preventive Health At-risk populations


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Evidence Based Medicine

Treatment of similar patients in similar ways Base treatment on scientific evidence Requirement for Clinical Integration Favorable

FTC opinion Requirement for Medicare ACO Intermountain Healthcare famous for this

See James and Savitz, “How Intermountain trimmed health care costs through robust quality improvement effects,” Health Affiars June 2011

Must be transparent


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Health Information Technology (“HIT”)Transparency

Important current aspects of HIT include: EHRs Computerized Physician Order Entries (“CPOE”) Health Information Exchange (“HIE”)

Florida way behind in HIE; Governor will not cooperate with Federal government

Data production and sharing and analysis critical to Clinical Integration


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Culture of Accountability

Change of culture to promote accountability critical and involves:

Collaboration and communication among multiple disciplines Proper incentives Use of data Importance of quality Appropriate documentation Teamwork

Change of culture can be dramatically hard to adhere


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“YOU BETTER START SWIMMING

OR YOU’LL SINK LIKE A STONE

FOR THE TIMES THEY ARE A-CHANGIN’”

- BOB DYLAN


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QUESTIONS?


Mike Segal, Esq.

Broad and Cassel

[email protected]

the affordable care act and clinical integration: a primer mike segal, esq. broad and cassel...

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